Limited Access

The Americans with Disabilities Act intends to help people. But for some it's a major headache.

Sunny Wong says her parents can't afford to make all the necessary improvements to their restaurant.

On a recent Thursday afternoon, Sunny Wong lingered outside Yuet Foo Seafood Restaurant in El Cerrito, a pair of white sneakers glinting beneath her business slacks. To her left stood Travis Wirt, a contractor she'd hired to help renovate the building; to her right, an Americans with Disabilities Act (ADA) inspector she'd hired to scrutinize its architectural features. Wong's parents have owned the deed to 10350 San Pablo Avenue, where Yuet Foo Seafood is housed, since 1983. They've leased it out to five businesses and undergone several building inspections, the last of which happened in the fall of 1999. Never once did a city official question the restaurant's compliance with the Americans with Disabilities Act, a federal law that requires all public venues to be completely accessible for people with disabilities. Now, because of a gap between the federal law and city enforcement, Wong's family is being sued.

The plaintiff, Albert Dytch, alleges that he was denied access to Yuet Foo when he visited the restaurant on January 6, owing to an unevenly paved parking lot and a restroom that wouldn't properly accommodate his wheelchair. Dytch, who has muscular dystrophy, has filed 48 similar lawsuits against East Bay businesses — mostly restaurants — in the past four years, the vast majority of which have resulted in settlements that required the defendants to pay several thousand dollars in attorneys' fees, plus the minimum $4,000 per violation in damages that California law guarantees for any civil rights plaintiff under the Unruh Civil Rights Act. Some critics would call Dytch a "frequent flier" or "vexatious litigant" because of his ADA lawsuits. Others would say that he and his attorney, Thomas N. Stewart, are simply fighting the good fight, exposing the fissures in municipal law that allow businesses to flout federal ADA guidelines without ever knowing it.

But Wong questions a system that leaves businesses vulnerable to lawsuits, even when owners have tried to do everything right. After receiving Dytch's summons in February, she contacted the Federal Pro Bono Project in San Francisco for free legal counsel. When Dytch and Stewart hired an ADA inspector to examine the property in April, Wong quickly secured her own ADA consultant. The two inspectors drew many of the same conclusions — if anything, Wong's consultant gave a more damning assessment. But Wong said her parents can't afford to spend thousands of dollars on ADA improvements, some of which might require the restaurant to close temporarily and mean a significant loss in revenue

Wong's predicament isn't all that uncommon in California. While most states don't allow litigants to benefit financially from ADA lawsuits, California does, resulting in some abusive lawsuits. It's clear that the Americans with Disabilities Act, while well intentioned and instrumental to giving people with disabilities better access, also has some major flaws — both for business owners and for those with access issues.

But Wong said she won't give in so easily and agree to a settlement, unlike other restaurateurs who have settled with Dytch in order to avoid a costly legal battle. "It's not about the money," she said. "It's about the principle."

Before the Americans with Disabilities Act passed in 1990, being in a wheelchair meant living as a second-class citizen in many ways. Crosswalks didn't have ramps, many parking lots didn't have handicapped-accessible spaces, and some public restrooms were completely unusable, said Erick Mikiten, an architect, ADA specialist, and wheelchair user who grew up in San Antonio, Texas, and is now based in Berkeley. He added that, in some cases, a person with disabilities could get in the restroom but couldn't get out, since there wasn't enough clearance to open the door inward. In many stores the counter tops were set too high, so a disabled person couldn't use them to sign a credit card receipt. "If they were 42 inches, they were at my eyebrows," Mikiten said, "so I'd feel like a child asking for help."

Granted, Mikiten's hometown of San Antonio was one of the worst places to grow up as a wheelchair rider — Mikiten said he had to fight his neighborhood high school to install ramps so he could attend school like all the other kids, and his middle school wasn't accessible at all. "Everybody in my area went to the same middle school, and I went to one in a different area, alone," he said. By contrast, California was more forward-thinking. It actually implemented disability laws in its building code starting in 1968, when the state began requiring access for all public buildings. It extended that statute to private edifices in 1970. Mikiten credits the state for being an early adopter — that's why he moved here in the Eighties — but acknowledges that the 1990 federal ADA act was still a landmark. "Before ADA law passed in 1990, [life] was dramatically different than it is today," he said.

Yet even a transformative piece of civil rights legislation isn't without its flaws. Although ADA law is intended to help people, it's extremely difficult to enforce. There's no federal agency that oversees city permitting processes, and local building departments seldom, if ever, hew to federal ADA law when conducting inspections — at best, they'll impose the state building code, which has similar, but not identical, ADA statutes. Many cities don't even do that, said Larry Paradis, executive director of the Berkeley nonprofit Disability Rights Advocates. And they don't have to, either: Cities have the power, but not the duty, to enforce ADA law, and many choose not to bother with it at all. Some business owners have tried to sue city building departments for not mandating ADA compliance, but the courts have always ruled in the city's favor.

As a result, numerous small-business owners throughout the Bay Area may think that they are ADA compliant when they're not. The Bay Area also is a patchwork of varying, inconsistent interpretations of ADA law. Oakland, Berkeley, and San Francisco have the best ADA inspection processes in the country, said Paradis — Berkeley is, after all, the proverbial home of the disability rights movement — but they only enforce state building codes, which differ from federal law. California, which bases its own building code (Title 24) on the so-called International Building Code, has been struggling with incongruities ever since the federal ADA law was passed in 1990, Mikiten said.

"Sometimes they're as small as the word "and,' versus the word "or," he said, adding that a single word can seem picayune in terms of semantics, but in the context of a state code, it's huge. Other times, he added, it's the size or orientation of a shower (the guidelines are different in California than in the federal law). A well-versed ADA litigant could even split hairs over the floor space outside of an accessible restroom: Federal law stipulates that it be 18-by-18 inches, so that a blind person could stand and read the braille on the sign, but remain outside the swing of the door. But state law is more vague, said Craig Williams, another architect and ADA specialist who is based in Sebastapol. It only requires a clearance area of 4-6 inches.

"Naturally, any building department with any brains is going to stamp its drawings and say, 'This does not guarantee compliance with federal ADA,'" Mikiten said. Because federal laws get updated every three years, on a different schedule from state laws, it's very hard for the two to remain in lockstep.

But Paradis, who also uses a wheelchair, is less concerned about discrepancies between federal and state law than about the fact that most cities don't enforce either of them. While some, like Berkeley and Oakland, have ADA specialists on hand to check floor plans and weigh in on the permitting process, others leave it up to the landlord or architect to keep abreast of the law. Many landlords shift accountability over to the businesses that rent their buildings by adding an ADA compliance clause in the lease agreement.

That's especially problematic for businesses that move into old buildings: Before federal ADA law passed in 1990, most old buildings were "grandfathered in" to new provisions in the state or city code; now they have to periodically look for violations in their buildings and make whatever improvements are "readily achievable" — meaning, just cheap enough to not shutter the business. But most businesses and public agencies don't know that, no matter how much they want to abide by the law. First Presbyterian Church of Berkeley built a new sanctuary in 1971 to bring itself up to code, but it was still the subject of a lawsuit last month, when Dytch filed a complaint for lack of convenient access to the men's room.

And sometimes ADA laws rub up against historic preservation laws, which are also well entrenched in cities like Berkeley and San Francisco. Carole Conn, who directs the public service program at The Bar Association of San Francisco, said she recently heard of a San Francisco business that wanted to become ADA-compliant, but couldn't make the necessary improvements without flouting city preservationist codes, since its building had been designated a historic landmark. "So the city wouldn't grant the permits, and the business is still trying to negotiate what to do," Conn said. She added that in many instances, building departments, preservationists, and ADA activists are all at cross-purposes, even if they have the best intentions.

But Paradis blames the rash of ADA non-compliance on a general misunderstanding of — or obliviousness to — both federal and state laws. "Generally, what we see is a failure to meet either standard," he said. "This crops up with some regularity, and it seems to be rooted in the problem that architects and planners don't know the codes." He added that as a wheelchair user, he constantly encounters restaurants with no accessible restrooms, or businesses with "really significant barriers" to people with disabilities. Even in Berkeley, which, for all its lip service to equal rights, still has its fair share of raised curbs and uneven sidewalks.

But when you see such aberrations, it's hard to figure out who to blame, he said. If individual business owners do a poor job of researching ADA law, city building departments are no better. On the whole, Paradis thinks that city inspectors' knowledge of ADA law is scattershot, at best. "Some are overwhelmed or understaffed, and don't catch violations when they're issuing permits," he said. "So there's this fallback of private litigation."

In other words, plaintiffs like Albert Dytch have become the only mechanism through which ADA law is enforced. That effectively means any business can be sued at any time.

It's also created an almost paralyzing climate of fear among business owners, even in the famously scrupulous Bay Area. And it's inhibited new restaurateurs from moving into old buildings in downtown Oakland because they're afraid of lawsuits, said Calvin Wong, a former director of building services for the city.

And it's spurred legislation. Last year, San Francisco Supervisor David Chiu introduced a proposal to prioritize permits for accessibility improvements and create incentives for landlords to add accessibility features in the permanent structures of their buildings. In May, the California Senate passed a bill that would help mitigate the effect of ADA litigation, by banning "demand for money" letters — meaning a shakedown letter that a lawyer might send to a non-compliant mom-and-pop, requesting Unruh Civil Rights damages and exorbitant lawyer's fees.

If it's hard for a century-old institution like First Presbyterian Church to keep track of an ever-changing byzantine law, it's doubly or triply hard for a non-English-speaking restaurateur.

Wong said that because her mother only speaks Cantonese and doesn't use the Internet, she's the one deputized to interpret laws and deal with city bureaucrats. When she found out about Dytch's complaint, she immediately called other friends in the restaurant business, to see if they were aware of current ADA standards. It turned out that few, if any, were conversant in the law.

Albany landlord Al Satake concurs. Satake, who owns the building that houses Christopher's Nothing Fancy Cafe on San Pablo Avenue, found himself embroiled in a legal battle with Dytch three years ago, even though he'd passed all of his city inspections. He wound up settling for $25,000, then making the $75,000 in construction improvements that Dytch and Stewart called for. "The slope from the entrance was off about an inch," Satake said. Dytch also found fault with the door width of the restaurant's accessible restroom, so Satake had to move a few walls, reinstall the toilets, and shift the sewer lines in order to adjust it. "This took us by surprise," he said. "The law is unfair in that it penalizes people who thought they were in compliance. Then you have these vultures coming down."

It turned out there were several things wrong with Yuet Foo Restaurant, too, although they wouldn't be obvious to a layperson — it certainly looks accessible from the outside, with a wide doorway set right off the street, handrails in the restrooms, and a seemingly ample disabled parking space. But closer inspection with a level and PSI measuring device revealed several infractions. The pavement of the accessible parking space is too uneven — federal law mandates that its surface slope not exceed that of the parking lot by more than 2 percent. The front door pressure is too strong, since the door closes in two seconds, rather than the three required for a wheelchair to get through. There are flowerpots in the vestibule that reduce a wheelchair's potential path of travel. The sconces out front hang too low, at 71 inches from the ground rather than the required 80. The list goes on. And on.

Wong is still assessing what's readily achievable at Yuet Foo. "If we completed the whole list, it would cost more than $20,000 when you include the down time," she said. "[Stewart's] disability expert said the [bathroom] doorway is too narrow. It's 31 1/4 inches and it's supposed to be 32." But fixing it would require her to cut into the wall, which would disrupt business, she said. "You can't have people hammering and cutting into drywall while customers are eating."

The fact that so many restaurants have similar structural flaws makes them sitting ducks for litigation. Stewart, who works out of an office in Clayton and advertises himself, specifically, as an "access disability discrimination lawyer," readily admits that restaurants account for the bulk of his business. They're the buildings that require the most accessible features, after all. "What needs to be accessible in a jewelry shop?" Stewart asked in a recent phone interview. "You walk in, you look at stuff, you either buy something, or you leave. In a restaurant, you have to park, walk in, go down the hallway, use the bathroom." He paused. 'The worst thing is you have to pee and you can't — so what are you going to do?"

Stewart works on volume, suing many restaurants for a relatively low fee — he says it's about a fourth of what many of his peers make. San Rafael attorney Bruce Napell, who settled two lawsuits with Stewart, estimates he charges between $3,500 and $5,000 per case, which means a $9,000 loss for the restaurant when you include the $4,000 statutory damages, plus whatever it costs to make the necessary repairs. That's much lower than what it would cost to fight a protracted court battle, attorneys say, which is why most restaurants just go right to the bargaining table. Stewart estimates that the vast majority of cases wind up in settlements. "I don't know if any of them go to trial," he said. "Usually if it's a bad case, the judge kicks it out. But if you're smart, you don't file bad cases."

It's certainly a point of contention whether Stewart is doing god's work, or profiting from a somewhat lucrative racket, and even he'll acknowledge the ambiguity. "There's money and there's goodness — there's kind of both," he said. To their credit, Stewart and his clients have made some progress toward the goal of grand-scale ADA compliance. (Dytch didn't respond to requests for comment.) Each settlement they make calls for injunctive relief, which means the defendant ultimately has to rectify the problem. Stewart argues that the prevalence of such lawsuits also pressures other business owners to make ADA renovations preemptively, lest they meet the same fate.

But Paradis says that ADA lawsuits actually hurt the cause, rather than help it. For one thing, they create a foul image for disability activists who are legitimately trying to effect change. For another, they tend to steal all the media attention. Nobody wants to read about the disabled activist who legitimately sued a municipality for not repaving its sidewalks. But everyone loves the story about the man who brought a tape measure into a restaurant and won several thousand dollars for proving that the bathroom mirrors were a few inches off. "There are some individuals and attorneys who seem to focus on those kinds of lawsuits," Paradis said. "And they are a cause for concern."

Wong bristles at the idea of a system that delegates so much power to individual litigants. She says it's shoddy at best; at worst, it's designed to penalize business owners who can't easily access the law. "My parents are a classic example," she wrote in a recent e-mail. "They have never used a computer before." She added that it's doubly hard to stay informed if you're from a different country, and unable to hire a private consultant who speaks your language.

Attorneys who have settled other cases with Dytch say it's unlikely that Wong's family will prevail in this one. In most cases, they say, a settlement is a fait accompli. But Wong is determined. She says that after fighting this case, she might go into a new line of work — helping immigrant business owners navigate ADA law. If she can't thwart the cottage industry, she at least wants to level the playing field.

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